United States District Court, Southern District of New York
August 14, 1991
LISA DANGLER, ON BEHALF OF HER MINOR SON, JUSTIN DANGLER, PLAINTIFF,
YORKTOWN CENTRAL SCHOOLS, JOHN V. DOHERTY, SUPERINTENDENT OF SCHOOLS, MICHAEL FRISCHMAN, PRINCIPAL, YORKTOWN HIGH SCHOOL, SUED IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES, DEFENDANTS.
The opinion of the court was delivered by: Goettel, District Judge:
This case presents the question of whether a student should
have been admitted to the National Honor Society chapter of his
high school. As federal rights protected by both the first and
the fourteenth amendment have allegedly been violated, this
court must reluctantly project its opinion into a dispute
distinctly within the realm of local educational authorities.
There is no question that Justin Dangler is a bright, capable
teenager. In three years at Yorktown High School, he has
maintained a near "A" average. Additionally, he participates in
a number of extracurricular activities including the school
newspaper, the student senate, local political campaigns, and
Future Business Leaders of America, along with working at
part-time jobs. The record contains glowing testimonials to
As a high school junior, Justin was eligible to be considered
for membership in the Yorktown High School chapter of the
National Honor Society ("NHS"). To be so eligible, a student
must be a junior or senior and have maintained at least a 3.5
out of a possible 4.0 average. The student's application must
then be approved by a majority of the five member faculty
council appointed annually by the high school principal to
evaluate candidates. In addition scholarship, "[s]election . .
. is based on outstanding character, leadership, and service."
Constitution of the Yorktown High School National Honor
Society, Article VII, § 1 (emphasis in original). In addition,
the Bylaws of the Yorktown Chapter state that "[t]he National
Honor Society exemplifies the qualities of honor and character"
and specifically state that a student is ineligible if he or
she does not exhibit exemplary character, has been caught
cheating or flagrantly violating school rules. These guidelines
make clear that character should be heavily weighted in the
assessment of a student by the faculty council.
Justin, possessing a 3.93 average, applied for membership in
the NHS. His application was denied although no reason was
initially provided. The rejection letter, written by the
advisor to the NHS, advised him that he would eligible for
consideration again in the Fall of 1991 and urged that he
"strive to attain a high quality of character, leadership and
service." He was invited to contact the advisor with any
questions. Letter from Kathy Belardo to Justin Dangler (March
25, 1991). Later correspondence informed his parents that
Justin could confer with the advisor to identify areas of
deficiency in order to work toward improvement so that he could
successfully pass the next application screening.
Justin's parents did not sit still for this rejection.*fn1
His father first wrote to the
high school principal, defendant Michael Frischman, requesting
review of the council's rejection. Frischman denied his request
for intervention, finding "that the Selection Committee adhered
closely to all guidelines for selection found in the National
Honor Society Handbook . . . [and] that the members of the
Selection Committee exercised their discretion in a legitimate
manner, and with the good faith expected of them." Letter from
Michael Frischman to Richard Dangler (April 10, 1991). Mr.
Dangler next wrote to the superintendent of schools, John V.
Doherty, requesting review of the council's decision. Doherty
declined to review the decision on the basis that the high
school principal has the final say in matters relating to
application to the NHS. He also sent to Mr. Dangler copies of
the rating sheets prepared by faculty members and copies of
disciplinary referrals in Justin's file. Mr. Dangler was
invited to review Justin's cumulative folder and health records
kept on file at the high school. Carol Ross, the Assistant
Superintendent for Secondary Schools, reviewed the procedure
used by the principal in conducting the appeal in the high
school and informed Mr. Dangler that the review was
comprehensive and appropriate to the matter. Letter from Carol
Ross to Richard Dangler (May 1, 1991).
After reviewing his son's files, Mr. Dangler wrote back to
Doherty requesting that ten disciplinary records be removed
from his son's school files because they were erroneous. These
records included six cutting class referrals, one referral for
calling two school secretaries "assholes", and referrals for
leaving class inappropriately. The high school principal wrote
to Mr. Dangler indicating that the six cutting referrals were
removed from Justin's file, leaving four disciplinary referrals
still in his record.
Mr. Dangler was still dissatisfied. He wrote to Doherty
again, asking that Justin's admission to the NHS be facilitated
because the existence of the six cutting referrals was a
substantial part of the record on which Justin's application
was considered. No response was apparently made.
Lisa Dangler, Justin's mother, then filed this suit on behalf
of her son seeking, among other things, to enjoin the
defendants from excluding him from the NHS. The complaint
alleges that Justin was deprived of property without due
process of law in retaliation for his and his father's exercise
of their first amendment rights.
Before us now is plaintiff's motion for a preliminary
injunction to compel the school authorities to admit Justin
into the NHS.
A preliminary injunction is an extraordinary remedy not to be
routinely granted. Patton v. Dole, 806 F.2d 24, 28 (2d Cir.
1986). The general standard for granting such relief in this
circuit is well settled: to justify the issuance of an
injunction, the plaintiff must show "(a) irreparable harm and
(b) either (1) likelihood of success on the merits or (2)
sufficiently serious questions going to the merits to make them
a fair ground for litigation and a balance of hardships tipping
decidedly toward the party requesting the preliminary relief."
Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72
(2d Cir. 1979).
Likelihood of Success on the Merits
To state a claim under 42 U.S.C. § 1983, it is necessary that
there be a deprivation of a right, privilege or immunity
secured by the Constitution or federal laws. Plaintiff contends
that Justin was deprived of property without due process of law
and that he was denied admission to the honor society in
retaliation for his and his father's exercise of their first
Plaintiff's first claim has little likelihood of success on
the merits. Expectations
in benefits are accorded the same protection under federal law
as traditional property. See, e.g., Perry v. Sindermann,
408 U.S. 593, 601-602, 92 S.Ct. 2694, 2699-2700, 33 L.Ed.2d 570
(1972) (teacher whose contract had been renewed for ten
consecutive years may have property interest in tenure);
Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 1017, 25
L.Ed.2d 287 (1970) (welfare recipients entitled to
pretermination hearing); Wolff v. McDonnell, 418 U.S. 539, 94
S.Ct. 2963, 41 L.Ed.2d 935 (1974) (procedural protections of
the Due Process Clause triggered by official cancellation of a
prisoner's good-time credits). Indeed, it is axiomatic that
"property" denotes a broad range of interests that are secured
by existing rules or understandings. Perry v. Sindermann, 408
U.S. at 601, 92 S.Ct. at 2699.
However, to have a property interest in a benefit, which
clearly membership in the National Honor Society is, a person
must have a legitimate claim of entitlement to it. Board of
Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33
L.Ed.2d 548 (1972). Entitlement does not derive from an
abstract need or desire for the benefit nor does it emerge from
a unilateral expectation that it will be given. Instead,
property interests are "created and their dimensions are
defined by existing rules or understandings that stem from an
independent source such as state law — rules or understandings
that secure certain benefits and that support claims of
entitlement to those benefits." Id.
Justin Dangler contends that his due process rights were
violated when unfounded cut slips and disciplinary referrals
were placed in his student personnel file which may have
influenced the faculty council to reject him for membership.
Before one is entitled to due process, however, the property
right must be established. Though plaintiff does not address
this issue, assuming instead that membership in the honor
society is his fundamental right based on his own analysis of
his record, the requisite analysis cannot be circumvented.
Thus, Justin has a property interest in membership in the NHS
only if it can be shown that there were rules or understandings
which support his claim.
The Constitution of the Yorktown High School National Honor
Society establishes that selection for membership in the NHS is
by a faculty council and is based on outstanding scholarship,
character, leadership, and service. Article VII, § 1. While the
measurement of scholarship is quantified in the eligibility
criteria, the measure of leadership, character and service is
qualitative, left to the discretion of the faculty committee.
There are no absolute standards to which a student can compare
his or her record and conclude, unlike an applicant for welfare
benefits, that he or she is entitled to the benefit. Nothing in
the rules of the National Honor Society or the Yorktown chapter
of the Honor Society can be construed as creating an
understanding that Justin Dangler, on his record, would be
admitted to the NHS.
Under the Roth standard, membership in the National Honor
Society is simply not an entitlement. Justin is not the first
student to litigate this issue and unanimously, courts have
concluded that membership in the National Honor Society does
not give rise to a property interest which entities one to due
process of law. See, e.g., Price v. Young, 580 F. Supp. 1
(E.D.Ark. 1983); Karnstein v. Pewaukee School Bd., 557 F. Supp. 565
(E.D.Wisc. 1983); Dallam v. Cumberland Valley School
District, 391 F. Supp. 358 (M.D.Pa. 1975).
Plaintiff also contends that Justin has a property interest
in the fairness of the selection process itself. One cannot
have a protected interest in a fair process. Since "[i]t is a
defense to a claim of deprivation of property that the process
was fair," Narumanchi v. Board of Trustees of Connecticut State
Univ., 850 F.2d 70, 73 (2d Cir. 1988), the integrity of the
process cannot be property. A cause of action can be derived
from the unfair application of the process to Justin.*fn2
However, unless federal
rights are implicated in the unfair application, this court may
not properly review the application process. Moreover, "[i]t is
not the role of the federal courts to set aside decisions of
school administrators which the court may view as lacking a
basis in wisdom or compassion." Wood v. Strickland,
420 U.S. 308, 326, 95 S.Ct. 992, 1003, 43 L.Ed.2d 214 (1975). It is true
that this evaluative process is subjective. That it is
subjective does not render it unfair.
Most honors are alike in that some individual or
committee must review what someone has
accomplished and make a subjective judgment of
whether that conduct is deserving of reward or
recognition. Inherent in such a system is the
possibility of error. If Paul Newman (The Verdict)
"wins" the academy award instead of Dustin Hoffman
(Tootsie), who is to say that he is really more
Karnstein v. Pewaukee School Board, 557 F. Supp. at 567.
Plaintiff also argues that the first amendment was violated
because Justin's rejection from the honor society was in
retaliation for his and his father's exercise of their rights
of free speech. He asserts that different standards were
applied to his application than were applied to other students.
When rules and standards are established for selection, all
applicants have the right to be considered without reference to
unconstitutional factors. Mt. Healthy Board of Education v.
Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). If
standards have been administered in an arbitrary and capricious
manner but not on the basis of any constitutionally prohibited
factors, the improper decision does not give rise to a
violation of § 1983. On the other hand, use of unconstitutional
factors in rendering an arbitrary and capricious decision does
give rise to a cause of action under this section.
Defendants contend that in Yorktown High School, all students
applying to the Honor Society are subjected to the same
evaluative process and the discretionary wisdom of the faculty
committee. They argue that Justin's application was not treated
any differently from that of any other student and that he was
rejected because the faculty committee felt he lacked the
requisite character and maturity. See Affidavit of Louis
Campagna (July 2, 1991); Affidavit of Albert Reid (July 2,
1991); Affidavit of Edward Creiner (July 2, 1991). Plaintiff
maintains that the reasons offered for Justin's rejection were
pretextual and that the motivating factor was the exercise of
free speech by Justin and his father.
Public high school students have substantive and procedural
rights while at school. Tinker v. Des Moines School Dist.,
393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969).
However, "§ 1983 was not intended to be a vehicle for
federal-court corrections of errors in the exercise of that
discretion which do not rise to the level of violations of
specific constitutional guarantees." Wood v. Strickland, 420
U.S. at 326, 95 S.Ct. at 1003. Our duty is therefore to
determine whether plaintiff has an actionable First Amendment
In March 1991, Justin wrote an article for the school
newspaper which plaintiff has characterized as "controversial".
This article, an eloquent plea for racial tolerance, reported
the results of a poll taken at Yorktown High School on racial
attitudes. Plaintiff contends that this article was assigned by
Justin's social studies teacher and contends that this article
was published over the opposition of Frischman who felt that
the article's publication would be "counter-productive" and
would give a "false impression" about the school. Affidavit of
Richard Dangler, ¶ 6. Frischman denies ever opposing the
article and indeed states that he reviewed the survey with
Justin and ultimately approved the article for publication.
Affidavit of Michael Frischman (July 3, 1991). This factual
dispute is resolved by the words of Justin himself. In his
article he wrote:
[I]t is important that I point out that the
assignment to engage in this project was given to
me by the Voice with the approval of the
administration. This is important because, not
only was the subject matter problematical and the
contemplated results tenuous, but more
importantly, the fact that I received this support
recognizes that the subject was possibly one of
concern to be dealt with, not avoided.
Dangler, J., "Poll on Prejudice Reveals Concern & Hope",
The Voice (March 1991).
Simply put, Justin's article states that he had the approval
of the administration. Frischman is part of the administration.
Justin's own facts destroy his claim. The argument that
Justin's rejection from the NHS, which took place shortly after
the publication of this article, was in retaliation for the
article is undercut by the non-controversial nature of the
article and the fact that the administration approved its
publication. Moreover, plaintiff's suggestion that the
erroneous disciplinary references were maintained in
retaliation for the article is impossible in light of the fact
that all the disciplinary referrals were made in 1988, 1989 or
1990, prior to the article's writing. Finally, plaintiff's
contention that the principal's review of the faculty
committee's decision or the superintendent's decision not to
review were motivated by malice does not implicate first
amendment concerns and we need not address that issue.
Plaintiff also contends that the decision to reject Justin
from the NHS was in retaliation for his father's speaking
publicly about many issues concerning public education
including the awarding of school bus contracts. Mr. Dangler has
been an outspoken critic of the school board and administration
for years and has openly clashed with the school system's
leadership. Additionally, his active involvement in matters
concerning his children such as their grades, their classes,
their bus transportation and their school assignments made Mr.
Dangler well-known to the high school administration.*fn3
The first question to be addressed is whether Justin can
assert what is essentially his father's first amendment
privilege. As a rule, a litigant may not assert the rights of
others to obtain relief from injury themselves. Singleton v.
Wulff, 428 U.S. 106, 113-14, 96 S.Ct. 2868, 2874, 49 L.Ed.2d
826 (1976). An exception to the rule will be made if 1) the
third party's enjoyment of the right in question is
"inextricably bound up with the activity the litigant wishes to
pursue," id., and 2) the third party is unable to assert his or
her own right, id.; see National Union of Hosp. and Health Care
Emp. RWSDU, AFL-CIO v. Carey, 557 F.2d 278, 281 (2d Cir. 1977).
Application of these principles to this case indicates that
it is proper for Justin to assert his father's rights. If a
parent is threatened that decisions adverse to his or her
child's interests will be made in retaliation for the parent's
speaking out on matters of public concern such as the bidding
system in Yorktown for school bus contracts, a chilling effect
on protected speech can reasonably be anticipated. There is
little question that the activity Justin wishes to pursue and
his father's right to voice his opinion on public matters are
"inextricably bound up" if retaliation can animate the faculty
council's decision to reject him from the NHS.
The second prong to be satisfied — whether Mr. Dangler can,
on his own, vindicate his own freedom of speech — poses a more
difficult question. On the surface, it would seem that any
person can defend his or her own first amendment rights. But,
in this case, for Mr. Dangler to successfully do so, he would
have to assert the damages accruing to him as a result of
Justin's rejection from the honor society. See Sondel v.
McDermott, 775 F.2d 859, 863 (7th Cir. 1985) (person alleging
that his stepdaughter was fired in retaliation for his
political speech would have to claim, as part of his damages,
the cost to him of his stepdaughter's
losing her job). This is not a loss that can be given any
monetary value. Under such circumstances, it seems appropriate
to allow the child here, who can assert meaningful damages, to
sue in order to discourage the subtle type of retaliation for
exercising first amendment rights which may have been in
operation in this case. See Molerio v. FBI, 749 F.2d 815,
824-25 (D.C. Cir. 1984) (allegations that a third party's
political activities caused plaintiff to be fired in
retaliation may provide a cause of action). On these somewhat
unique facts, we find that Justin has standing to assert his
father's first amendment privilege.
With that aside, the merits of Justin's claim must be
considered. We find that there is a factual question underlying
the likelihood of success of the merits of Justin's first
amendment claim which cannot be resolved on the current record.
Plaintiff alleges that the decision by the faculty council to
reject Justin from the honor society was motivated by the
desire of the school administration to retaliate against Mr.
Dangler for his outspoken personality. Defendants have denied
this, arguing that Justin's application was reviewed and
considered, as required by NHS and Yorktown High School
procedures, and rejected because it was believed that Justin
lacked the requisite character to be a member of the honor
society. Candidates are evaluated on the basis of service,
leadership, and character. To aid the faculty council in making
its decisions as to the character, leadership and service of
each applicant, the views of the applicant's teachers are
solicited.*fn4 Accordingly, 22 of Justin's teachers were asked
for recommendations. Eleven teachers responded: six recommended
his admission to the NHS, three recommended against and two
abstained. The council's policy apparently was to reject
students who had received two or more "no" recommendations
where the "no" votes have been held valid after those teachers
defended their position before the faculty council. Two of the
teachers providing a "no" recommendation to Justin's
application, Mr. Kowalski and Mr. Snyder, visited the committee
to defend their votes. Evidence submitted to this court
indicates that the rejection of Justin by the faculty council
The members of the faculty council assert, by affidavit, that
the rejection decision was not influenced by outside factors.
Nevertheless, it may be that the tension between Mr. Dangler
and Mr. Frischman was common knowledge in the school. In
addition, the fact remains that these teachers reported to Mr.
Frischman. Though the record, as constructed, strongly suggests
that no improper motives underlay the decision to deny Justin
membership in the NHS, the plaintiff asserts otherwise and this
is sufficient to raise the specter of a factual question upon
which the likelihood of success on the merits by plaintiff
In this circuit, questions of motive are not properly
resolved on motion because credibility necessarily becomes an
issue. In Wakefield v. Northern Telecom, Inc., 813 F.2d 535 (2d
Cir. 1987), the plaintiff alleged that the defendant discharged
him in order to deny him commissions he was allegedly owed; the
defendants argued that the plaintiff's discharge was the result
of a reduction in the size of its work force. There, prior to
trial, the only evidence that the plaintiff had to support his
position was his "own subjective belief." Id. at 540.
Nevertheless, the court held that a hearing was necessary
because state of mind was in issue.
Under these circumstances, an evidentiary hearing to
determine the likelihood of success on the merits of the
plaintiff's first amendment claim is warranted. Ordinarily,
plaintiff must make a showing of irreparable harm before a
preliminary injunction hearing would be held. Plaintiff has
requested, pursuant to Rule 65(a)(2) of the Federal Rules of
Civil Procedure that the injunction hearing and the trial on
the merits be combined into one proceeding after expedited
discovery in order to speedily resolve what he views as a
We will grant the plaintiff's request.*fn5 If the trial of the
merits is accelerated and consolidated with the preliminary
injunction hearing, then no determination of irreparable harm
need be made by this court. See Cronin v. United States Dept.
of Agriculture, 919 F.2d 439, 445 (7th Cir. 1990); Drummond v.
Fulton County Dept. of Family and Children's Services,
563 F.2d 1200, 1204 (5th Cir. 1977).
The parties will be permitted discovery and a consolidated
injunction hearing and trial will be held on August 29, 1991 at
10 o'clock or as soon as the trial immediately preceding has